Tuesday, December 18, 2012

There is a fascinating, creepy part of ANGELS IN AMERICA when Roy Cohn and a fictional Reagan Justice Department official are trying to recruit Joe Pitt to work for Roy, and they talk about appointing conservative judges:

MARTIN

It's a revolution in Washington, Joe. We have a new agenda and finally a real leader. They got back the Senate but we have the courts. By the nineties the Supreme Court will be block-solid Republican appointees, and the Federal bench, Republican judges like landmines, everywhere they turn. Affirmative action? Take it to court. Boom! Land mine. And we'll get our way on just about everything: abortion, defense, Central America, family values, a live investment climate...

Kushner doesn't mention gun control but it appears that the Supreme Court's conservatives have had a more radical-right impact on the interpretation of the Second Amendment than any other issue.

I didn't realize this because I hadn't really paid much attention to gun laws until I got into fights with various gun nuts on Facebook, and ended up doing some research.

For almost seven decades, the court’s leading decision was U.S. v. Miller. The 1939 case involved a ban on the possession of a sawed-off shotgun. Sounding like Burger, the court unanimously said that the Second Amendment’s “obvious purpose” was “to assure the continuation and render possible the effectiveness of” the militia. Without evidence that the possession of a sawed-off shotgun was related to preservation of a well-regulated militia, the court refused to say that the Second Amendment protected the right to have such a weapon.

For decades, federal courts overwhelmingly rejected the conclusion that the Second Amendment protects an individual right. It wasn’t until the 21st century that lower federal courts, filled with appointees of Presidents Ronald Reagan and George H.W. Bush, started to adopt the individual-rights position. And, of course, the Supreme Court itself adopted that view in 2008, by a 5-to-4 vote.

The 2008 case that is considered a "landmark decision" is District of Columbia et. al vs. Heller. And so Heller won the right to his handgun by the Court ruling that the "well-regulated militia" aspect did not matter.

According to Wiki:

In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:

The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”

But the Reagan/Bush conservatives won by one vote.

Kushner may not have predicted the future, but there's one creepy coincidence here - the fictional Reagan Justice Department official making the case for a Reagan Supreme Court, which made the pro-Heller decision, is named Martin Heller.